The police never read me my Miranda rights. Can my case be dismissed?

The honest answer: Probably not. Due to popular television shows, most people think that the failure of the police officer to read you your Miranda rights results in the dismissal of your case. Nope. You are only entitled to Miranda if you are in custody and are about to be interrogated (questioned). The term “in custody” has various meanings, however. You are certainly in custody when you are in jail. However, I once convinced a judge to suppress statements and field sobriety tests because my client was not read his Miranda rights prior to being questioned outside on his front lawn by an officer with his gun drawn. Case over.

I’ve heard of Miranda, but what exactly is it?

“Miranda” has become part of our everyday vocabulary, mainly from police or courtroom television shows and movies. The Miranda warning is what you probably already know or have heard: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford one, one will be provided to you.” Miranda comes from the case Miranda v. Arizona, 384 U.S. 436, decided by the United States Supreme Court in 1966. Miranda protects you from being a witness against yourself (self-incrimination). If you confess to a crime or answer questions that the government can use to prove you committed a crime, these statements are likely admissible into evidence at trial. Miranda tells you that you have a right to not answer questions. Miranda also tells you that you have the right to have an attorney with you if you choose to answer questions. This way, you are protected from making a statement that might harm you in court. Miranda, however, need not always be read to you. In order for Miranda to kick in, you must be in a certain situation. First, the person questioning you must (usually) be law enforcement: a police officer, FBI agent, etc. A friend cooperating with the government, wearing a wire, asking you questions probably does not need to read you Miranda before you start a conversation. Second, you must be in an interrogation. If you walk up to an officer and confess to a crime without him asking you a question, you probably cannot challenge your confession on Miranda grounds. Third, you must be in custody. This means that standing on the street corner, unhandcuffed and free to leave at any time, with an officer is probably not custody. Minnesota courts have spent a lot of time figuring out what constitutes law enforcement, interrogation, and custody. Each situation is dealt with on a case-by-case basis. Your case may be different than Joe Smith’s and so what the court decided for Joe Smith may not apply to your case. Oftentimes, these decisions turn on tiny details that may seem insignificant to most people, but could help win you the case—what was said, when, where, how, etc.

When can the police search my car?

Police can search your car whenever they make up a reason to believe you are committing a crime. To be honest, this depends on what kind of car you drive, your race, and what neighborhood you live in. Unfortunately, some police officers engage in racial profiling, and will manufacture reasons to search a car when no valid reason exists. Much like lawyers, one bad apple can ruin the entire lot. Whether the search is legal, however, is another question. The general rule is that police may only search a vehicle without a warrant if they have probable cause to believe that a crime has been committed and believe that there is evidence of a crime in the vehicle. Because this is a highly litigated area of criminal law (https://www.house.leg.state.mn.us/hrd/pubs/ss/clss4th.htm), it is best to consult a criminal defense attorney when your vehicle has been subject to police search. Never give police permission to search your car. The whole, “well if you don’t have anything to hide, why don’t you let me search it” comment is a trick of the trade. Don’t fall for it.

What is the Fourth Amendment and how does it help me?

The Fourth Amendment has graced more dismissal orders than any other Amendment. We as Americans are very lucky to have its protection, for we are the only country in the world where if evidence is seized in violation of its beautiful prose, the evidence is dismissed, suppressed, and done away with. Gone. The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by law enforcement officers. The Fourth Amendment of the United States Constitution provides: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article I, section 10, of the Minnesota Constitution is nearly identical to the Fourth Amendment, but the Minnesota Supreme Court has, at times, afforded individuals greater protection against unlawful searches and seizures under the Minnesota Constitution than that available under the Federal Constitution. Protection of the home is at the core of the Fourth Amendment, but protection also applies to persons, papers, and effects.

The police never read me my Miranda rights. Can my case be dismissed?

The honest answer: Probably not. Due to popular television shows, most people think that the failure of the police officer to read you your Miranda rights results in the dismissal of your case. Nope. You are only entitled to Miranda if you are in custody and are about to be interrogated (questioned). The term “in custody” has various meanings, however. You are certainly in custody when you are in jail. However, I once convinced a judge to suppress statements and field sobriety tests because my client was not read his Miranda rights prior to being questioned outside on his front lawn by an officer with his gun drawn. Case over.

I’ve heard of Miranda, but what exactly is it?

“Miranda” has become part of our everyday vocabulary, mainly from police or courtroom television shows and movies. The Miranda warning is what you probably already know or have heard: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford one, one will be provided to you.” Miranda comes from the case Miranda v. Arizona, 384 U.S. 436, decided by the United States Supreme Court in 1966. Miranda protects you from being a witness against yourself (self-incrimination). If you confess to a crime or answer questions that the government can use to prove you committed a crime, these statements are likely admissible into evidence at trial. Miranda tells you that you have a right to not answer questions. Miranda also tells you that you have the right to have an attorney with you if you choose to answer questions. This way, you are protected from making a statement that might harm you in court. Miranda, however, need not always be read to you. In order for Miranda to kick in, you must be in a certain situation. First, the person questioning you must (usually) be law enforcement: a police officer, FBI agent, etc. A friend cooperating with the government, wearing a wire, asking you questions probably does not need to read you Miranda before you start a conversation. Second, you must be in an interrogation. If you walk up to an officer and confess to a crime without him asking you a question, you probably cannot challenge your confession on Miranda grounds. Third, you must be in custody. This means that standing on the street corner, unhandcuffed and free to leave at any time, with an officer is probably not custody. Minnesota courts have spent a lot of time figuring out what constitutes law enforcement, interrogation, and custody. Each situation is dealt with on a case-by-case basis. Your case may be different than Joe Smith’s and so what the court decided for Joe Smith may not apply to your case. Oftentimes, these decisions turn on tiny details that may seem insignificant to most people, but could help win you the case—what was said, when, where, how, etc.

When can the police search my car?

Police can search your car whenever they make up a reason to believe you are committing a crime. To be honest, this depends on what kind of car you drive, your race, and what neighborhood you live in. Unfortunately, some police officers engage in racial profiling, and will manufacture reasons to search a car when no valid reason exists. Much like lawyers, one bad apple can ruin the entire lot. Whether the search is legal, however, is another question. The general rule is that police may only search a vehicle without a warrant if they have probable cause to believe that a crime has been committed and believe that there is evidence of a crime in the vehicle. Because this is a highly litigated area of criminal law (https://www.house.leg.state.mn.us/hrd/pubs/ss/clss4th.htm), it is best to consult a criminal defense attorney when your vehicle has been subject to police search. Never give police permission to search your car. The whole, “well if you don’t have anything to hide, why don’t you let me search it” comment is a trick of the trade. Don’t fall for it.

What is the Fourth Amendment and how does it help me?

The Fourth Amendment has graced more dismissal orders than any other Amendment. We as Americans are very lucky to have its protection, for we are the only country in the world where if evidence is seized in violation of its beautiful prose, the evidence is dismissed, suppressed, and done away with. Gone. The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by law enforcement officers. The Fourth Amendment of the United States Constitution provides: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article I, section 10, of the Minnesota Constitution is nearly identical to the Fourth Amendment, but the Minnesota Supreme Court has, at times, afforded individuals greater protection against unlawful searches and seizures under the Minnesota Constitution than that available under the Federal Constitution. Protection of the home is at the core of the Fourth Amendment, but protection also applies to persons, papers, and effects.

What can I do to help my case?

First, don't speak to the police or an opposing attorney without your own counsel present. Though they may seem sympathetic, you run the risk of incriminating yourself. The standard “anything you say can and will be used against you” really is true. It is rare that you would have to talk to anyone without your attorney present if you say you want your attorney there. Second, cooperate with your attorney. Attorneys are bound by the attorney-client privilege and confidentiality. Whatever you tell your attorney stays with your attorney. Your attorney will only tell the opposing side what is necessary to comply with the rules of discovery and to help you with your case. Remember, your attorney represents you—your attorney is on your side. You have everything to gain by being honest with your attorney and cooperating.

Do you do a lot of trials?

Yes. Ryan is a board certified Criminal Law Specialist, which means that Ryan has met the requirements of having many jury trial days. Ryan was in three weeks of straight jury trials in March of 2012. The first was a Felony First Degree Assault and First Degree Burglary where the client was acquitted on the most serious charges and the second was a two-week First Degree Criminal Sexual Assault jury trial.

Can you guarantee a result?

No. If I could, then my legal fees would be 10 times what they are now. If an attorney tells you they can make a guarantee about the result in your case, you should stand up and walk out of their office. No attorney can ethically guarantee a result. The guarantee of a result implies that your fee is refundable if your lawyer is unsuccessful. Such a fee would then be contingent on the outcome of the case. The ethical rules governing the behavior of attorneys forbid an attorney from entering into an arrangement for a contingent fee in a criminal case. If an attorney guarantees a result, ask them to put it in writing. If they will not reduce it to writing, they lied to you. You need an attorney that will be honest with you, one who will give you the bad news as well as the good. The best way to judge an attorney is to research the attorney’s results and reputation.

Should I talk to the police?

A good friend of mine had a mounted walleye on his wall, and under it was a plaque that said, “if only I had kept my mouth shut I would still be alive” . . . enough said. You are rarely under an obligation to talk to the police. If they approach you, you should say you want your attorney present. Often times, your attorney will get in touch with the person who is questioning you and tell them that you are represented and any communication must go through the attorney.

I’m scared — what should I tell my family?

Nothing. Until you talk to an attorney. Anything you tell anyone else has the potential to be used against you. Sometimes your family (or whomever you talk to) can be required to testify in court. This isn’t always the case, of course, but it’s a possibility. Talk to your attorney about what you should or shouldn’t say and who you can talk with.

Should I try to handle the case myself?

Handling your case alone is called going “pro se.” It’s possible and people do it, but navigating through the court rules, the Rules of Evidence, and the Rules of Criminal Procedure can be very difficult and overwhelming. So, the answer to the question is: Sure, if you have the confidence of performing heart surgery on yourself, then have at it. If not, call a good lawyer, trust me, you will need one.

Why is important to hire a reputable attorney?

There are many, many criminal defense attorneys. Most prosecutors know the attorneys that will try cases and the attorneys that “talk the talk” but don’t “walk the walk.” It is important to hire an attorney who has a reputation of trying cases because your chances of a great plea deal are much better with a real trial attorney. Like most other professions, reputation in the legal community is very important. It is very beneficial to you, the client, to have an attorney who is well-liked and well-respected in the legal community. Attorneys who are on good terms with judges, prosecutors, and other attorneys have a great advantage over those who do not. When the prosecutors and judges like and trust the defense attorney, they are more likely to listen to and work with what the defense proposes.

Do I really need an attorney?

The answer to this question depends upon the nature of your charges. In most cases, if you retain an experienced criminal attorney, you have a much better chance of prevailing in your case, or receiving a lighter sentence if you are convicted.

What’s a “specialist” and why is it important?

Attorneys must follow Rules of Professional Conduct. The Board that keeps an eye on attorneys takes claims to be a specialist very seriously. Attorneys cannot state that they are specialists unless they also state the name of the certifying organization, which must be accredited by the Minnesota Board of Legal Certification, or, if it’s not, the attorney must state that the certifying organization is not so accredited. Only about 3% of attorneys are certified as a specialist in Minnesota. As of October 2012, only 44 lawyers are certified as specialists by the Minnesota State Bar Association. Ryan Garry is a criminal law specialist. In order to be certified as a Criminal Law Specialist, the attorney must have a certain number of trial hours, be in good standing with the Board of Professional Responsibility, pass a qualification exam, have references from other attorneys and judges, and submit writing samples and court transcripts. The requirements are strict.

Minnesota man gets hearing on First Amendment

WCCO News – 2010-04-24

A Minnesota man who admits posting several anti-Muslim cartoons in St. Cloud will get a chance to dispute civil charges against him.

The drawings included sexually explicit depictions of bestiality and sodomy, along with derogatory images of the prophet Muhammad.

[Client] says he posted the drawings to educate others about Islam. He argues that his actions represent protected speech.

His attorney, Ryan Garry, said Friday the city attorney’s office should be prosecuting people for crimes, not opinions.

Minnesota man gets hearing on First Amendment

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